PART II. TESTING AND IMPLIED CONSENT

 

Law Journals and Reviews

 

  Expert and Opinion Testimony of Law Enforcement OfficersRegarding Identification of Drug Impaired Drivers.  23 UH L. Rev. 151.

 

§291E-11  Implied consent of operator ofvehicle to submit to testing to determine alcohol concentration and drugcontent.  (a)  Any person who operates a vehicle upon a public way, street,road, or highway or on or in the waters of the State shall be deemed to havegiven consent, subject to this part, to a test or tests approved by thedirector of health of the person's breath, blood, or urine for the purpose ofdetermining alcohol concentration or drug content of the person's breath,blood, or urine, as applicable.

(b)  The test or tests shall be administered atthe request of a law enforcement officer having probable cause to believe theperson operating a vehicle upon a public way, street, road, or highway or on orin the waters of the State is under the influence of an intoxicant or is underthe age of twenty-one and has consumed a measurable amount of alcohol, onlyafter:

(1)  A lawful arrest; and

(2)  The person has been informed by a law enforcementofficer that the person may refuse to submit to testing under this chapter.

(c)  If there is probable cause to believe thata person is in violation of section 291E-64, as a result of being under the ageof twenty-one and having consumed a measurable amount of alcohol, or section291E-61 or 291E-61.5, as a result of having consumed alcohol, then the personshall elect to take a breath or blood test, or both, for the purpose ofdetermining the alcohol concentration.

(d)  If there is probable cause to believe thata person is in violation of section 291E-61 or 291E-61.5, as a result of havingconsumed any drug, then the person shall elect to take a blood or urine test,or both, for the purpose of determining the drug content.  Drug content shallbe measured by the presence of any drug or its metabolic products, or both.

(e)  A person who chooses to submit to a breathtest under subsection (c) also may be requested to submit to a blood or urinetest, if the law enforcement officer has probable cause to believe that theperson was operating a vehicle while under the influence of any drug undersection 291E-61 or 291E-61.5 and the officer has probable cause to believe thata blood or urine test will reveal evidence of the person being under theinfluence of any drug.  The law enforcement officer shall state in theofficer's report the facts upon which that belief is based.  The person shallelect to take a blood or urine test, or both, for the purpose of determiningthe person's drug content.  Results of a blood or urine test conducted todetermine drug content also shall be admissible for the purpose of determiningthe person's alcohol concentration.  Submission to testing for drugs undersubsection (d) or this subsection shall not be a substitute for alcohol testsrequested under subsection (c).

(f)  The use of a preliminary alcohol screeningdevice by a law enforcement officer shall not replace a breath, blood, or urinetest required under this section.  The analysis from the use of a preliminaryalcohol screening device shall only be used in determining probable cause forthe arrest.

(g)  Any person tested pursuant to this sectionwho is convicted or has the person's license or privilege suspended or revokedpursuant to this chapter may be ordered to reimburse the county for the cost ofany blood or urine tests, or both, conducted pursuant to this section.  Ifreimbursement is so ordered, the court or the director, as applicable, shallorder the person to make restitution in a lump sum, or in a series of proratedinstallments, to the police department or other agency incurring the expense ofthe blood or urine test, or both. [L 2000, c 189, pt of §23; am L 2001, c 157,§11; am L 2002, c 113, §1; am L 2004, c 90, §5; am L 2006, c 64, §1]

 

Case Notes

 

  Where defendant was lawfully arrested and then"accurately informed of his or her statutory right to consent or refuse, aswell as the consequences of such consent or refusal", trial court erred ingranting defendant's motion to exclude evidence of defendant's breath alcoholtest result.  113 H. 363 (App.), 152 P.3d 535.